Outside the Beltway

Assessing John Roberts – Day 1

James Joyner · Wednesday, July 20, 2005 · 8 comments

Despite having been nominated only hours ago, the evaluations of Judge John Roberts are pouring in. Thus far, the consensus seems to be that he’s both a match for the judicial philosophy that conservatives demand and yet sufficiently judicious as to be easily confirmable.

Bill Kristol weighed in at 11 last night with “Bush Rises to the Occasion.”

With the Supreme Court pick of John Roberts, George W. Bush rose to the occasion.

The occasion was an opportunity to reshape the Supreme Court. Bush seized the opportunity, in two ways: He moved the Court a solid step to the right (to speak vulgarly), and he elevated its quality. It’s true that Roberts is a Rehnquist, not a Scalia or a Thomas. He’ll be a little more incremental, a little more cautious, than some of us rabid constitutionalists will sometimes like. But he is a conservative pick, and a quality pick–and, to my surprise, a non-PC, non-quota pick.

[…]

By simply going for the best person, by not worrying about walking out to the podium last night accompanied by a white male, Bush did something important and courageous. He showed that he knows that on really significant matters, one has to ignore political correctness and political pandering, and even political convenience. For this lesson, as well as for an intellectually impressive and politically sound choice, Bush deserves a lot of credit. I unreservedly give it to him.

Kristol’s Weekly Standard cohort, Fred Barnes, is disappointed though, calling Roberts “The Safe Pick.”

President Bush kept his promise in nominating John Roberts, a federal appeals court judge, to replace Justice Sandra Day O’Connor the Supreme Court. Since Bush first announced for the presidency in 1999, he has vowed to name judicial conservatives who will interpret the law rather than legislate from the bench and fabricate new rights. Roberts, the president’s first Supreme Court pick, qualifies as a judicial conservative, or as Republican Sen. John Cornyn called him, “a mainstream traditionalist.” His confirmation will nudge the court to the right. And confirmation appears highly likely.

But there’s more to the Roberts choice than that. In choosing among judicial conservatives, there are safe picks and risky picks. With Roberts, Bush took the safe route. Related to this, there are cautious judicial conservatives and bold judicial conservatives. The president tilted to the cautious side in naming Roberts.

How safe was the pick? The answer is very. This is partly because of his impressive credentials as a brilliant legal scholar and man of solid temperament and character. More important, he’s already been tested in the Senate and passed muster. In 2003, his nomination to the U.S. Court of Appeals for the District of Columbia sailed through the Senate Judiciary Committee on a 16-3 vote. He cleared the full Senate on a voice vote. If you are committed to choosing a genuine judicial conservative, it doesn’t get much safer than Roberts.

Bush had the opportunity to take a riskier approach. His list of possible nominees included a number of federal judges who would have faced truculent opposition by most Senate Democrats and by the liberal groups allied with them. These included Judges Michael Luttig of the 4th U.S. Court of Appeals and Edith Jones of the 5th. Confirmation of either would have been difficult and involved a nasty and bitter clash between Republicans and Democrats. Still, they’d likely have been confirmed. The hearings and debate on Roberts are expected to be kinder and gentler.

CSM’s Warren Richey, though, goes further than Kristol or Barnes. He terms Roberts, “The man who could shift the court right.”

In nominating federal appeals-court judge John Roberts to the US Supreme Court, President Bush is laying the groundwork for a significant rightward shift at the nation’s highest court. The formal announcement has triggered a massive campaign by both conservative and liberal advocacy groups seeking to mold public opinion either for or against Judge Roberts. And it sets the stage for a Senate showdown that could, once again, test the limits of political resolve in Washington. But most important, the move seeks to accomplish a fundamental change at one of America’s most respected institutions – establishing a presidential legacy that could influence the nation decades after George W. Bush has left the White House.

The Bush administration’s conservative push at the high court would have been more sweeping, however, if the president had named a judicial clone of Justice Antonin Scalia or Justice Clarence Thomas, as he had promised during his campaigns. Instead, Roberts’s record suggests his voting pattern would be closer to Chief Justice William Rehnquist, a solid member of the court’s conservative wing though not as doctrinaire as his two conservative colleagues.

But the replacement of centrist swing voter Justice Sandra Day O’Connor with someone likely to vote more consistently with the court’s conservative bloc means that an entire range of 5-to-4 O’Connor precedents over the past two decades may soon be in jeopardy. They include abortion-rights restrictions – such as parental notification laws and bans on so-called “partial birth” abortions. Affirmative-action programs may also be at risk. At the same time, Roberts appears to be a reliable vote in support of the high court’s revival of states’ rights. And last Friday, he was a member of the three-judge appeals-court panel in Washington, D.C., that upheld the president’s wartime power to conduct terrorism tribunals at the Guantanamo Bay Naval Base.

In selecting Roberts, Mr. Bush dipped into the very top of the conservative legal elite in the United States. Few candidates at age 50 have a résumé that can match Roberts’s. And although he is a white male, rather than a woman or member of a racial minority, his personal story is not without compelling touches.

The AP’s Gina Holland believes “Roberts Has Solid Conservative Credentials.”

John G. Roberts has solid conservative credentials and a lengthy background as a government lawyer and a private attorney whose clients ranged from big companies to welfare recipients. But his record as a judge is short and relatively nondescript. Roberts, 50, has been on the U.S. Court of Appeals for the District of Columbia Circuit only since June 2003, where he has shown a penchant for backing the Bush administration.

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Abortion rights groups contend that during his days as a lawyer in the administration of President George H.W. Bush he tried to overturn Roe v. Wade, the 1973 decision legalizing abortion. Roberts helped write a brief that stated, “We continue to believe that Roe was wrongly decided and should be overruled.” Pressed during his 2003 confirmation hearing for the appeals court for his own views on the matter, Roberts said: “Roe v. Wade is the settled law of the land. … There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”

This tells us little, however. An attorney writing a brief advances the case of his client, not necessarily his personal views. And an appellate judge abides by the repeated rulings of the Supreme Court. The role of Supreme Court Justice is quite different than either of those.

A member of the conservative Federalist Society that is influential on Bush’s judicial picks, Roberts is a widely respected lawyer. President Bush called him “one of best legal minds of his generation.” Roberts is a familiar face at the Supreme Court, where he clerked for then-Associate Justice William H. Rehnquist from 1980-81 and later successfully argued many cases, both for the government and as a private lawyer. He was associate counsel to President Reagan from 1982-86 and served as principal deputy solicitor general under Kenneth Starr in the administration of the first President Bush from 1989-93 before returning to private practice.

Many justices know him, and that would aid his transition to the court, where he argued 39 cases. “He has a friendly, down-to-earth demeanor that puts others at ease and fosters consensus,” said Gregory Garre, a Washington lawyer and former colleague.

This seems to buttress Kristol and Richey’s contention that Roberts is a Rehnquist rather than a Scalia. Of course, Rehnquist was less of a consensus builder as an Associate than he later was as Chief.

The AP has a companion piece entitled “John Roberts on the Issues.”

ABORTION: As a lawyer in the administration of President Bush’s father, he helped write a Supreme Court brief that said, “We continue to believe that Roe (v. Wade) was wrongly decided and should be overruled.”

RELIGION: Roberts unsuccessfully urged the Supreme Court to rule that public schools could sponsor prayer at graduation ceremonies. “We do not believe … that graduation ceremonies pose a risk of coercion,” said the brief Roberts helped to write on behalf of the first Bush administration.

ENVIRONMENT: As a judge, he was sympathetic to arguments that wildlife regulations were unconstitutional as applied to a California construction project. The government feared the project would hurt arroyo toads.

CRIMINAL MATTERS: His votes on the bench have been mixed. He ruled in favor of a man who challenged his sentence for fraud, then said police did not violate the constitutional rights of a 12-year-old girl who was arrested, handcuffed and detained for eating a single french fry inside a train station in Washington.

POLICE SEARCHES: Joined an appeals court ruling in 2004 that upheld police trunk searches, even if officers do not say they are looking for evidence of a crime.

MILITARY TRIBUNALS: Roberts was part of a unanimous decision last week that allowed the Pentagon to proceed with plans to use military tribunals to try terrorism suspects held at Guantanamo Bay.

Absent content, this information is useless. Again, he was acting as an attorney–an advocate for a client–in some of these cases. In others, he was likely applying settled law. Ruling for or against a particular defendant sheds little light on a judge’s overall view of the law; judges often are forced to issue rulings whose results sicken them in order to uphold the law.

Tom Curry, an MSNBC analyst, explains “Why Roberts looks likely to win.”

Some say that President Bush̢۪s nomination of appeal court judge John Roberts to the Supreme Court will trigger a brutal, blood-soaked confirmation battle that will tie up Washington for months.

Here’s why the odds are very much against that and here is why he is likely to be confirmed: Roberts is Mr. Establishment. When he was nominated for the appeals court for the District of Columbia Circuit in 2003, he was praised by Walter Dellinger and Seth Waxman — two former solicitors general in the Clinton administration. And, Roberts is respected by the Washington legal establishment as one of the very best Supreme Court advocates of the present day.

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Unlike recently confirmed appeal court judge Janice Rogers Brown, Roberts has not delivered provocative and incendiary speeches and articles.

His record as an appeal court judge is quite slim, since he has only served on the bench since June of 2003. But even though Roberts has not much of a paper trail to attack, his vetting as conservative is clear and certified. One does not become law clerk to Associate Justice William Rehnquist; special assistant to Ronald Reagan̢۪s attorney general William French Smith; associate White House counsel to Reagan and a top practitioner in the solicitor general̢۪s office under the first President Bush without being a solid conservative.

Indeed. Which is why the usual suspects on the Left are already issuing incendiary press releases. Still, barring some major revelation, Curry’s analysis sounds about right:

And Democratic strategist Chris Kofinis set the nomination in the larger landscape: “The president made a choice that he knows will raise the ire of most Democrats, progressives, and moderates. He and the right-wing got exactly what they wanted: a right-wing judge and weeks of the American public and media focused on the nomination battle instead of a growing quagmire in Iraq, a Social Security debacle, and a Karl Rove scandal that had — until today — no end in sight.â€

My judgment is that, in the end, Lieberman and other conservative and centrist Democrats will vote for Roberts and he̢۪ll be on the high court come October.

There’s no reason that shouldn’t happen. Roberts was just confirmed by the Senate to the #2 court in the land two years ago. Democrats will be hard pressed to make the case that his elevation amounts to “extraordinary circumstances” justifying a filibuster.

Around the Blogosphere:

Stephen Green examines the Fun Factor: “There’s no fun to be had with John Roberts. Look at his picture, and he could be an orthodontist giving a commencement speech.”

Pejman Yousefzadeh “would have preferred it to be for the position of Chief Justice.” (Of course, Rehnquist will need to step down first.)

Steven Taylor notes that Roberts is “young, and a white male.”

Joe Gandelman, who has a huge link roundup, notes that ” Roberts doesn’t have any silly mustache or a beard you just wish you could grab and gleefully shave off. . . .”

Michelle Malkin live blogged the announcement and talking head commentary. She notes that Roberts is on good terms with many on the Left.

Ed Morrissey believes “this sends a signal to the Senate that Bush has no intention of backing down from the confirmation fight.”

Hugh Hewitt gushes, “A home run. . . . Judge John Roberts may be the smartest lawyer I have known, and he combines that intellect with a graciousness and good humor that will make it hard for any except the most extreme ideolouges to oppose him.”

Gregory Djerejian agrees: “Excellent, excellent pick. ”

McQ argues “it will be hard for the left to claim he’s an extremist.”

Updates:

Linda Greenhouse, “Bush’s Supreme Court Choice Is a Judge Anchored in Modern Law”

Ann Coulter, “”We don’t know much about John Roberts. Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever… Oh, yeah…we know he’s argued cases before the supreme court. big deal; so has Larry Flynt’s attorney.””

Justice Sandra Day O’Connor: “”That’s fabulous!” . . . [John G. Roberts is] “brilliant legal mind, a straight shooter, articulate, and he should not have trouble being confirmed by October. He’s good in every way, except he’s not a woman.”

Neil Lewis, “An Ultimate Capital Insider”

LAT: “A judicious choice”